Archive for December, 2012

A New Year’s Resolution

A New Year is upon us, likely my last at the Consumer Product Safety Commission. As I reflect on what the CPSC has accomplished since I’ve been here and what I hope we can do this year, I think there’s one New Year’s resolution I would like to see my fellow Commissioners and I keep:

Collaboration–We should focus more on the ‘should’ and not on the ‘can’.

Had Congress wanted CPSC unilaterally controlled by the party in the White House, it could have placed a single administrator within a consumer product safety agency and left product safety policy to presidential direction. Instead, Congress, by creating an independent Commission, clearly encouraged dialogue and compromise. We should heed that call.

The past three years have been frustrating on those occasions when closed decision-making was favored over negotiation, albeit difficult at times  We need to set aside pointed rhetoric, concentrate on core issues, and replace partisan lines with genuine lines of communication. Collectively, we can and should try to find a way to ‘yes’  by honestly listening to and accommodating differing points of view. We can be better at how we function as Commissioners. If we resolve to do so, we can make consumers safer, give manufacturers a fairer consideration, and allow everyone to have more confidence that our decisions are not just ones we can make, but ones we should make.

Do It Quick Or Do It Right?

One of the biggest challenges the CPSIA presented the CPSC is the requirement, in §104 of the law, to issue four final rules each year regulating durable infant and toddler products. Young children are our most precious “consumers” and it is critical that the products they use for sleeping, feeding, and playing are safe. Having said that, not all these products necessarily present risks or present risks of the same magnitude.

Congress told us to mandate standards for these durable nursery products based on voluntary consensus standards unless we determined that more stringent requirements are needed. As we have worked to push rules out on the timetable mandated by Congress, I am concerned that the quality of the rules we are issuing is being overshadowed by the need to meet this schedule. Sometimes we propose or mandate requirements that have not had a full vetting by the experts outside the agency. If this happens we need to go back and repair the damage, a process that is resource intensive and  inefficient for the agency and for stakeholders.

I discuss my concern in a statement I filed on an NPR on hand-held infant carriers. I am interested in any ideas from others who share my concern about how to make the process work better than it currently does. You can read my statement here.

CPSC: NOT a Representative Sample of Good Regulating

The Consumer Product Safety Commission has completed another regulation dealing with the process of testing children’s products: the manner in which companies select the samplesPaperwork-mountain they test. Thanks to Congress, the result is better than it could have been. Thanks to my colleagues, it is not as good as it should have been.

Originally, the Consumer Product Safety Improvement Act (CPSIA), required manufacturers and importers to test “random samples” of their products. We were poised to read the word random with its most pedantic statistical meaning, creating an employment boom for mathematicians.

Many commenters deplored this uber-technical reading of the term, urging that we read it more plainly. Congress agreed, amending the statute to require “representative”—instead of “random”—samples.  So we started our work again, coming up with a rule to tell companies what representative means. The definition we came up with – a selection process that “provide[s] a basis for inferring compliance” even among untested products – seems reasonable enough on its face. What is unreasonable about this rule is that, when read in the context of the periodic testing rule it is amending, at best it is redundant, adding dead weight to the already-unwieldy testing rule. But more likely, it adds new requirements to what is already in the testing rule, although to extent of those requirements will only be fleshed out when we start to bring compliance actions.

What the new rule does add is another peak among the mountains of documentation the testing rule requires. We’re demanding separate recordkeeping for the representative sampling procedure on top of the documentation mandate that already exists for testing. Just two years of this recordkeeping could cost nearly $46 million, in addition to the costs for the rest of the testing rule’s paperwork. And remember, this price tag isn’t for either setting up the testing plan or doing the testing; it’s just for showing the math on the selection process for testing. Did we pause for one second to consider how to reduce the recordkeeping burden? Of course not. Did we give even a passing head nod to the direction the White House gave us this past summer to find ways to reduce recordkeeping burdens? Again, of course not.

At this rate, I expect our rule to require the documentation of the process used to document the selection processes for the documented testing plan will hit the Federal Register shortly. And a tip to traders who follow our regulatory hit parade: It’s a good time to be in the hard drive and paper businesses.

You can read my statement giving further detail to the problems of this rule here.

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